David A. Bovino, P.C. et al v. MacMillan et al

Filing 142

ORDER denying 45 Motion for Summary Judgment by Judge Philip A. Brimmer on 03/20/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00551-PAB-MEH
DAVID A. BOVINO P.C., d/b/a Law Offices of Bovino & Associates, a
Colorado corporation, and
DAVID A. BOVINO, an individual,
Plaintiffs,
v.
PATRICIA A. MACMILLAN, an individual, and
CHRISTINA MACMILLAN, an individual,
Defendants.

ORDER

This matter is before the Court on Plaintiffs’ Motion for Summary Judgment
[Docket No. 45] filed by plaintiffs David A. Bovino P.C. d/b/a Law Officers of Bovino &
Associates and David A. Bovino. This Court has subject matter jurisdiction pursuant to
28 U.S.C. § 1331 and § 1367.
I. BACKGROUND1
John H. MacMillan III was a descendant of the founder of Cargill Inc., a United
States-based food and manufacturing company. Docket No. 23 at 3, ¶ 9. John
MacMillan III married Patricia MacMillan and the couple had a son, Andrew Cargill
MacMillan (“Mr. MacMillan”). Id. John MacMillan III and Patricia MacMillan divorced
and John MacMillan III died, leaving Mr. MacMillan as a beneficiary of a trust of

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The following facts are undisputed unless otherwise indicated.

significant value. Id. at 1, 3, ¶¶ 9-10. The trust was administered by UBS Trust
Company N.A. (“UBS”). Id. at 3, ¶ 10. Mr. MacMillan married Christina MacMillan
(“Mrs. MacMillan”) and the couple had a son. Docket No. 23 at 4, ¶ 15.
Beginning in 2008, plaintiff David A. Bovino served as legal counsel to Mr.
MacMillan. Docket No. 45-1 at 1, ¶ 5. In 2010 and 2011, Mr. Bovino was retained to
assist in the transfer of trust assets from UBS to a different institutional trustee. Docket
No. 45 at 3, ¶ 1.2 Mr. Bovino and Mr. MacMillan also discussed “concerns over
continuing [his] marriage” to Mrs. MacMillan. Docket No. 45-3 at 1. Mr. Bovino and Mr.
MacMillan often communicated by email, through Mr. MacMillan’s AOL account and Mr.
Bovino’s email account with the domain name bovinolaw.com. Docket No. 45 at 6,
¶ 14; see, e.g., Docket No. 45-4.
For the purposes of their motion, plaintiffs admit that Mrs. MacMillan had
permission to access Mr. MacMillan’s account. Docket No. 45 at 10 n.2. However, the
scope of that permission is in dispute. Mrs. MacMillan testified that Mr. MacMillan gave
her access to his email by entering his email password into her computer. Docket No.
45-2 at 9, p. 19:5-7; id. 15, p. 27:14-19. She testified that “Andrew knew I could see his
e-mails too. He was fully aware of that.” Id. at 4, p. 12:3-4. However, Mrs. MacMillan
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The Court’s Practice Standards require any party opposing a motion for
summary judgment to “admit or deny the asserted material facts set forth by the
movant.” Practice Standards (Civil cases), Judge Philip A. Brimmer § III.F.3.b.iv. Legal
arguments, such as relevance and materiality, as to an established fact “should be
expressed in the part of the brief devoted to legal argument, and the fact should be
admitted.” Practice Standards (Civil cases), Judge Philip A. Brimmer § III.F.3.b.vii.
Defendant’s brief in opposition responds by asserting that several specific facts are
“Irrelevant and immaterial.” Docket No. 65 at 3. Thus, in resolving the instant motion,
the Court will consider admitted any alleged facts defendant characterizes as “Irrelevant
and immaterial.”
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also testified that Mr. MacMillan did not give her permission to forward emails to Patricia
MacMillan. Docket No. 45 at 4, ¶ 8.
Mrs. MacMillan admits accessing Mr. MacMillan’s AOL account and viewing an
email from Mr. Bovino dated January 7, 2011, in which Mr. Bovino discusses “concerns
over continuing your marriage to your wife, Tina.” Docket No. 45 at 4, ¶ 3. Mrs.
MacMillan also admits accessing Mr. MacMillan’s AOL account and viewing an email
from Mr. Bovino dated February 2, 2011, in which Mr. Bovino discusses transferring
trust assets from UBS to a different institutional trustee. Id. at 4, ¶ 4. At various times,
Mrs. MacMillan would access Mr. MacMillan’s AOL account and forward emails and
attached documents from Mr. Bovino to her personal AOL account, Patricia MacMillan,
and UBS representatives. Id. at 5-6, ¶¶ 10, 13, 16. Mrs. MacMillan admits to
sometimes deleting emails from Mr. MacMillan’s email account. Docket No. 45-2 at 1516, pp. 27:20-28:6.
On or about February 24, 2011, Mrs. MacMillan created the domain name
bovinolaw.net. Docket No. 45 at 6, ¶ 19.3 Mrs. MacMillan sent an email to Mr.
MacMillan from a bovinolaw.net email address pretending to be Mr. Bovino and stating
that Mr. Bovino had changed his email address to bovinolaw.net. Id. at 6, ¶ 21. After
creating the bovinolaw.net email address, Mrs. MacMillan set up Mr. MacMillan’s email
account to automatically route actual emails sent by Mr. Bovino from bovinolaw.com
into a spam folder. Id. at 6, ¶ 22. Mrs. MacMillan would review emails diverted to Mr.

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The emails attached to plaintiffs’ brief indicate that the domain name Mrs.
MacMillian created was bovinolaw.net, and not, as plaintiffs’ brief states, bovino.net.
See, e.g., Docket No. 45-20 at 1.
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MacMillan’s spam folder, copy their contents, and at least once re-sent an email to Mr.
MacMillan from the bovinolaw.net address. Id. at 7, ¶ 23. In one instance, Mrs.
MacMillan admits that she altered the contents of Mr. Bovino’s email before re-sending
it to Mr. MacMillan from the bovinolaw.net address. id. at 7, ¶ 25; compare Docket No.
45-15, with Docket No. 45-20.
Mrs. MacMillan claims that she monitored her husband’s emails out of concern
for his mental state and decision-making ability.4 Docket No. 45-2 at 12, p. 23:14-20.
Mrs. MacMillan testified that she believed Mr. Bovino knew her husband was vulnerable
and that it was her intention to cut off communication between her husband and Mr.
Bovino. Docket No. 45-2 at 20, p. 33:10-20. According to a March 30, 2011 order from
the 17th Judicial Circuit in and for Broward County, Florida, Mr. MacMillan was declared
incompetent due to mental illness. Docket No. 65-2.
On May 10, 2011, Mr. Bovino, David A. Bovino P.C., and Mr. MacMillan filed this
action against Patricia MacMillan in the District Court for Pitkin County, Colorado.
Docket No. 1 at 1. On January 24, 2012, Mr. MacMillan, through his guardian ad litem,
asked to be dismissed as a party. Docket No. 1-1 at 2-3. On January 25, 2012, the
Court dismissed Mr. MacMillan from the case. Docket No. 1-2 at 2. On February 10,
2012, the remaining plaintiffs amended their complaint to add Mrs. MacMillan as a
defendant. Docket No. 1-3 at 2. On March 1, 2012, Mrs. MacMillan removed the case
4

The “Additional Relevant Facts” set forth in Mrs. MacMillan’s response brief fail
to comply with the Court’s Practice Standards, which require that additional disputed
questions of fact be set forth in separate paragraphs and accompanied by a specific
reference to material in the record. See Practice Standards (Civil case), Judge Philip A.
Brimmer § III.F.3.b.v. The Court will disregard any of Mrs. MacMillan’s factual
assertions that do not include a specific reference to the record.
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to this Court. Docket No. 1. In the Second Amended Complaint, plaintiffs assert nine
claims for relief against defendants. Docket No. 9. Plaintiffs bring state law claims for
invasion of privacy, intentional interference with contractual obligations, intentional
interference with prospective business advantage, and civil conspiracy. Id. at 10-13.
Plaintiffs bring federal claims under the Anticybersquatting Consumer Protection Act,
Lanham Act, Stored Communications Act, and Computer Fraud and Abuse Act. Id. at
12-15.
Plaintiffs move for summary judgment on the issue of Mrs. MacMillan’s liability
under their eighth claim for relief, which is brought pursuant to the Stored
Communications Act (“SCA”), 18 U.S.C. § 2701, et seq. Docket No. 45 at 1. Plaintiffs
argue that Mrs. MacMillan acted in excess of her authorized access to Mr. MacMillan’s
AOL email account and that Mrs. MacMillan prevented access to emails sent by
plaintiffs. Id. at 8. Mrs. MacMillan responds by arguing that plaintiffs lack standing to
bring a claim under the SCA and that Mrs. MacMillan did not exceed her authorized
access to Mr. MacMillan’s AOL email account. Docket No. 65 at 8, 16.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if
under the relevant substantive law it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes

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over material facts can create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An
issue is “genuine” if the evidence is such that it might lead a reasonable jury to return a
verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir.
1997). “In applying this standard, we view all facts and any reasonable inferences that
might be drawn from them in the light most favorable to the nonmoving party.”
Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994).
III. ANALYSIS
A. Standing Under the Stored Communications Act
Mrs. MacMillan, in response to plaintiffs’ motion, raises the issue of plaintiffs’
standing to bring a claim under the SCA. Docket No. 65 at 16. Specifically, Mrs.
MacMillan argues that plaintiffs did not suffer an “injury in fact” and are not aggrieved
persons entitled to bring an action under the statute. Id. Although it is not entirely
clear, Mrs. MacMillan also seems to claim that plaintiffs lack standing under Article III of
the United States Constitution. Id. Plaintiffs respond that they have suffered an injury
caused by Mrs. MacMillan’s alleged unauthorized obtaining, forwarding, and altering of
their privileged communications. Docket No. 66 at 9.
The SCA is violated when a person:
(1) intentionally accesses without authorization a facility through which an
electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or
electronic communication while it is in electronic storage in such system . . . .

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18 U.S.C. § 2701(a). The SCA provides a right of action for persons “aggrieved by any
violation of this chapter in which the conduct constituting the violation is engaged in with
a knowing or intentional state of mind . . . .” 18 U.S.C. § 2707(a).
Under Article III, Section 2 of the United States Constitution, the judicial power of
federal courts extends only to “Cases” or “Controversies.” Carolina Cas. Ins. Co. v.
Pinnacol Assurance, 425 F.3d 921, 926 (10th Cir. 2005). Thus, in order to establish
“constitutional standing,” the plaintiff must show that:
(1) it has suffered an “injury in fact” that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81
(2000). Constitutional standing is jurisdictional and “may be raised at any stage of the
proceeding.” Carolina Cas., 425 F.3d at 926.5
On the issue of whether they are “persons aggrieved” under the SCA, plaintiffs
claim that “[b]y admitting that she forwarded e-mails between Mr. Bovino and his client
to the very individuals or entities about which the client sought legal advice, Defendant
herself establishes the basis for Plaintiffs’ grievance.” Docket No. 66 at 8. Plaintiffs go
on to state to that “Plaintiffs, as a lawyer and law firm, therefore have Article III standing
to protect the unauthorized obtaining, forwarding, altering and restricting of access to,
attorney-client privileged emails sent to their client.” Id. at 9.
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Ordinarily, when the issue of standing is raised by a summary judgment motion,
the plaintiff cannot rest solely on the complaint’s allegations, but must show injury in
fact through affidavits or other evidence that tends to establish specific facts. Id. at
927.
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Plaintiffs correctly note that, in determining their standing under Article III, the
Court should not confuse standing with the merits. See Initiative and Referendum
Institute v. Walker, 450 F.3d 1082, 1092 (10th Cir. 2006). As the Tenth Circuit later
observed in Day v. Bond, 500 F.3d 1127, 1137 (10th Cir. 2007), “[p]ractically speaking,
Walker mandates that we assume, during the evaluation of the plaintiff's standing, that
the plaintiff will prevail on his merits argument – that is, that the defendant has violated
the law.” Based upon the undisputed fact that plaintiffs were parties to the
communications viewed by Mrs. MacMillan, that Mrs. MacMillan admits that she had no
authorization to forward emails to third parties, and that plaintiffs provide some factual
support that Mrs. MacMillan used her access to Mr. MacMillan's email account to divert
emails plaintiffs sent to Mr. MacMillan into a spam folder before Mr. MacMillan could
view them, the Court finds that plaintiffs have shown injury in fact sufficient to satisfy
their standing under Article III.
B. Mrs. MacMillan’s Liability Under the Stored Communications Act
Plaintiffs argue that Mrs. MacMillan violated the SCA by forwarding, copying,
printing, preventing access to, and altering emails Mr. Bovino sent to Mr. MacMillan’s
AOL email account. Docket No. 45 at 11-13. Mrs. MacMillan does not dispute that Mr.
MacMillan’s AOL email account and email messages were “in storage” at a “facility
through which an electronic communication service is provided” under 18 U.S.C.
§ 2701(a). Docket No. 65 at 8-9. Rather, Mrs. MacMillan argues that Mr. MacMillan
authorized her access to his AOL email account. Id.
The SCA was enacted, in part, “to protect privacy interests in personal and

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proprietary information and to address the growing problem of unauthorized persons
deliberately gaining access to . . . [private] electronic or wire communications.” Gen.
Bd. of Global Ministries of the United Methodist Church v. Cablevision Lightpath, Inc.,
2006 WL 3479332, at *3 (E.D.N.Y. Nov. 30, 2006). Under the SCA, a person is not
liable for conduct that is “authorized . . . by a user of that service with respect to a
communication of or intended for that user.” 18 U.S.C. § 2701(c)(2). The existence
and scope of authorization is generally a highly factual inquiry. Global Policy Partners,
LLC v. Yessin, 686 F. Supp. 2d 631, 636 (E.D. Va. 2009). Authorized access, in the
electronic context, typically involves consideration of “the expected norms of intended
use or the nature of the relationship established” between the holder of the
communications and the authorized party. U.S. v. Phillips, 477 F.3d 215, 219 (5th Cir.
2007) (analyzing authorization under the Computer Fraud and Abuse Act (“CFAA”));
see also EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 581-84 (1st Cir. 2001)
(upholding preliminary injunction based, in part, upon “voluminous documentary
evidence” that defendant likely violated the CFAA); U.S. v. Morris, 928 F.2d 504, 510
(2d Cir. 1991) (affirming jury finding that defendant’s conduct constituted access without
authorization in violation of the CFAA). For example, in Yessin, a husband and wife
separated and started divorce proceedings while serving as general partners in the
same business. 686 F. Supp. 2d at 634. The husband allegedly accessed his wife’s
business email account, viewing and intercepting communications between his wife and
his wife’s attorney concerning divorce proceedings. Id. The husband argued that he
was not liable under the SCA because, as a general partner, he was authorized to

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access business email accounts. Id. at 636. In denying the husband’s motion to
dismiss, the court found that the factual allegations created an inference that the
husband lacked a legitimate business reason to access his wife’s business email
account such that he was not acting as an agent of the business. Id. at 636-37; see
also Penrose Computer Marketgroup, Inc. v. Camin, 682 F. Supp. 2d 202, 210
(N.D.N.Y. 2010) (finding that defendant’s ability to access plaintiff’s computer system
“does not support the conclusion that Defendant had authorization to access another
employee’s email account”).
Although the Tenth Circuit has not addressed the boundaries of authorized
access under the SCA, other jurisdictions interpret the SCA with reference to the
common law doctrine of trespass. See Theofel v. Farey-Jones, 359 F.3d 1066, 107273 (9th Cir. 2004) (“Just as trespass protects those who rent space from a commercial
storage facility to hold sensitive documents, the Act protects users whose electronic
communications are in electronic storage”); Cablevision Lightpath, 2006 WL 3479332,
at *3 (“Computer hackers are defined as electronic trespassers.”). Thus, courts hold
that “[p]ermission to access a stored communication” is not necessarily valid
authorization if permission “would not defeat a trespass claim in analogous
circumstances.” Theofel, 359 F.3d at 1073. The SCA additionally requires plaintiff to
prove that the conduct or result was the defendant’s conscious objective. Cardinal
Health 414, Inc. v. Adams, 582 F. Supp. 2d 967, 976 (M.D. Tenn. 2008).
The Court first turns to the issue of authorization. For the purposes of their
motion, plaintiffs admit that Mrs. MacMillan had permission to access Mr. MacMillan’s

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email account. Docket No. 45 at 10 n.2. Thus, Mrs. MacMillan’s viewing of Mr.
Bovino’s emails, whether or not they were marked “attorney-client privilege,” did not
“exceed[] an authorization” under § 2701(a)(2).6
Plaintiffs instead argue that Mrs. MacMillan exceeded the scope of her
authorization by forwarding, copying, printing, deleting, diverting, and altering Mr.
MacMillan’s emails. Docket No. 45 at 11-13. Specifically, plaintiffs argue that Mrs.
MacMillan knew she was “not authorized to forward e-mails, yet she intentionally
forwarded e-mails to herself and intentionally printed e-mails, thus ‘obtaining’ them.’”
Docket No. 66 at 6. Plaintiffs make similar arguments that Mrs. MacMillan altered Mr.
MacMillan’s emails. Id. The SCA prohibits conduct whereby a person, without
authorization, “obtains, alters, or prevents authorized access.” 18 U.S.C. § 2701(a).
The SCA does not prohibit obtaining or altering emails without authorization, but
obtaining or altering access without authorization. See Sherman & Co. v. Salton Maxim
Housewares, Inc., 94 F. Supp. 2d 817, 820 (E.D. Mich. 2000). Thus, the SCA prohibits
unauthorized access, not “the disclosure or use of information gained without
authorization.” Id. (emphasis in original); accord Wesley College v. Pitts, 974 F. Supp.

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Mr. MacMillian, the holder of any attorney-client privilege associated with
plaintiffs’ emails, is no longer a party to this case and plaintiffs cannot invoke Mr.
MacMillan’s attorney-client privilege for their own benefit. See Republic Gear Co. v.
Borg-Warner Corp., 381 F.2d 551, 556 (2d Cir. 1967) (holding that attorney-client
privilege belongs to the client and an attorney cannot “invoke the privilege for his own
benefit when his client desires to waive it”); Shriver v. Baskin-Robbins Ice Cream Co.,
Inc., 145 F.R.D. 112, 115 (D. Colo. 1992) (“Colorado courts have clearly recognized
that the attorney-client privilege is personal to the client and . . . the key inquiry in
dealing with claims of waiver is whether the client, as the privilege holder, has expressly
or impliedly forsaken a claim of confidentiality with respect to the information in
question.”)
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375, 389 (D. Del. 1997) (“a person who does not provide an electronic communication
service . . . can disclose or use with impunity the contents of an electronic
communication”); Penrose Computer Marketgroup, Inc. v. Camin, 682 F. Supp. 2d 202,
211 (N.D.N.Y. 2010) (“[S]ection 2701 outlaws illegal entry, not larceny” (internal
quotation marks omitted)). The SCA is therefore violated when “the trespasser gains
access to information to which he is not entitled to see, not [when] the trespasser uses
the information in an unauthorized way.” Int’l Ass’n of Machinists & Aerospace Workers
v. Werner-Masuda, 390 F. Supp. 2d 479, 497 (D. Md. 2005) (internal quotation marks
omitted).7 As a matter of law, Mrs. MacMillan did not exceed the scope of her
authorized access by forwarding or printing emails from Mr. MacMillan’s AOL account.
Plaintiffs also argue that Mrs. MacMillan prevented access without authorization
by routing Mr. Bovino’s emails to Mr. MacMillan’s spam folder and intentionally deleting
certain emails. Docket No. 66 at 6. Mrs. MacMillan argues that plaintiffs fail to produce

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Plaintiffs cite Amedisys Holding, LLC v. Interim Healthcare of Atlanta, Inc., 793
F. Supp. 2d 1302, 1315-16 (N.D. Ga. 2011), in support of their argument that
forwarding emails constitutes a violation of the SCA. However, in Amedisys Holding,
the plaintiff sought a preliminary injunction for misappropriation of trade secrets, breach
of contract, and violation of the SCA and CFAA. Id. Although the court concluded that
a former employee “likely violated the SCA by downloading, copying, or transferring to
her personal email account trade-secret material,” the court granted plaintiff a
preliminary injunction without deciding the merits of plaintiff’s SCA claim. Id. (emphasis
added). Plaintiffs’ citation to Samples v. Rainsberger, 2007 WL 4208310, at *1 (D. Or.
Nov. 28, 2007), also fails to support their argument. Plaintiffs correctly point out that
the defendant in Samples admitted to forwarding emails and photos; however, the court
did not decide whether an SCA claim could be based upon defendant’s admission. Id.
Rather, the court denied summary judgment, holding that issues of fact existed as to
the scope of defendant’s authority to access plaintiff’s email account. Id.; see also
Monson v. Whitby Sch., Inc., 2010 WL 3023873, at *5 (D. Conn. Aug. 2, 2010) (denying
motion to dismiss upon finding that employer sufficiently pled that former employee
exceeded the scope of her authorized access).
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any evidence that her actions actually prevented or restricted Mr. MacMillan’s access to
Mr. Bovino’s emails. Docket No. 65 at 15. Through her opposition to the summary
judgment motion, Mrs. MacMillan admits paragraph 22 of the statement of undisputed
facts, namely, that “she altered Mr. MacMillan’s e-mail account such that Bovino Law emails would go into Mr. MacMillan’s spam folder.” Docket No. 45 at 6, ¶ 22; Docket No.
65 at 4, ¶¶ 19-23. However, Mrs. MacMillan’s testimony on this subject contains
numerous contradictions, as paragraph 22 itself reflects. See, e.g., Docket No. 45 at 6,
¶ 22 (“Any emails that were forwarded to bovino.net they would go into the spam
folder.”). As a result, her apparent admission that all of plaintiffs’ emails would be
diverted to a spam folder is actually an admission of the contradicting statements she
made in her deposition. Initially Mrs. MacMillan testified that “I had Mr. Bovino’s email
so they would go into Andrew’s spam and if I felt like they were appropriate, then I
would copy them into the bovino.net and send it through and that was only one e-mail
where that happened.” Docket No. 45-2 at 21, p. 34:15-19. She testified that only one
or two emails ever went into the spam folder. Id. at 24, p. 40:17-20. Mrs. MacMillan
then explained “the emails that came from the bovino.net account. Those were the emails that went into the spam folder. Those were the only e-mails that went into the
spam folder . . . . Any e-mails that were forwarded to bovinolaw.net they would go into
the spam folder.” Docket No. 45-2 at 25, p. 41:13-16 (emphasis added); id. at 26, p.
42:21-22. She also stated, “I know that there were one or two e-mails that went into the
spam folder that went to bovino.net account.” Id. at 29-30, pp. 52:25-53:2. It is unclear
whether Mrs. MacMillan simply forwarded emails sent by Mr. Bovino to her
bovinolaw.net account, which is not a violation of the SCA, or whether, on one or two
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occasions, Mrs. MacMillan diverted to Mr. MacMillan’s spam folder emails sent by Mr.
Bovino. Because a genuine dispute exists as to whether Mrs. MacMillan exceeded her
authorization by preventing Mr. MacMillan’s access to Mr. Bovino’s email, plaintiffs are
not entitled to summary judgment on this issue. See Seamons v. Snow, 206 F.3d
1021, 1026 (10th Cir. 2000) (holding that court may not resolve credibility issues in
deciding a motion for summary judgment).
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiffs’ Motion for Summary Judgment [Docket No. 45] is
DENIED.

DATED March 20, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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